PATEL SOMABHAI GAGALDAS Vs. KADI PATEL BHUVAN

JUDGEMENT

(1.) THE present Second Appeal under Section 100 of the Code of Civil Procedure, 1908, is directed against judgment and order dated 19.02.1994 of learned Assistant Judge, Mehsana passed in Regular Civil Appeal No. 90 of 1993, whereby the learned Judge dismissed the civil appeal and confirmed judgment and order dated 30.06.1993 passed by learned Civil Judge (J.D.), Kadi, dismissing Regular Civil Suit No. 55 of 1990 of the appellant herein -original plaintiff.

(2.) THE suit of the appellant -plaintiff was for declaration and permanent injunction. The appellant having died during the pendency of the present Appeal, he is now represented through his heirs and legal representatives.

(3.) IN order to understand the controversy and before adverting to the question formulated at the time of admission, the facts involved in the case may be stated. The dispute related to portion of land admeasuring 8 x 10 ft. forming part of particular survey number sold to the defendant under registered sale deed. The plaintiff in his suit claimed that for him and his heirs, right of user over the said portion was kept permanently reserved under the sale deed. It was on this premise that the appellant herein instituted Regular Civil Suit No. 55 of 1990 for declaration and injunction. The appellantplaintiff pleaded that the agricultural land bearing survey No. 1540/1 belonged to his ancestors and came to be sold to the defendant -trust by way of registered sale deed dated 29.01.1942. It was the case of the plaintiff that out of the total land sold, portion of open land on the North -West corner in the compound of the property of the width of 8 ft. North -South and 10 ft. East -West(8 x 10 ft.) was kept for use of the plaintiff and his heirs and successors and that a permanent right thereover was retained as per the recitals in the sale deed. By way of cause of action, it was pleaded that the defendant wanted to construct on the said portion, obstructing the entry and had stock -piled the bricks at the site.